GENE ROSEN, APPELLANT,
v.
EILEEN ROSEN, APPELLEE
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The court affirmed the permanent alimony award but reversed the award of attorney's fees and the payment of a psychiatrist bill.
[1] An award of permanent alimony is justified when supported by the record and prior appellate decisions.
[2] A trial court cannot reconsider an issue that was explicitly excluded from the scope of an appellate mandate.
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Join FLexlaw to unlock all legal intelligenceThe husband appealed a final judgment regarding alimony, and the wife appealed an order denying her contempt motion and awarding the husband attorney'…
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SCHWARTZ, Chief Judge.
In case no. 82-131, the husband appeals from a final judgment entered after an earlier one was reversed in part in Rosen v. Rosen, 386 So. 2d 1268 (Fla.3d DCA 1980), rev. denied, 392 So. 2d 1378 (Fla.1981). Because the award of $2,000 per month in permanent alimony was fully justified both by the record and our prior opinion, we reject Rosen’s contention that it represents an abuse of the trial court’s discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Rosen v. Rosen, 386 So. 2d at 1272.
The provision of the judgment now under review requiring the payment of a bill of the wife’s psychiatrist which was incurred before, but was not allowed in the initial judgment is, however, reversed. It is clear that this award constitutes an unauthorized departure from the limited terms of our mandate, which did not permit the reconsideration of this issue. Beach Resort Hotel Corp. v. Wieder, 83 So. 2d 863 (Fla.1955); Sullivan v. Chase Federal Savings & Loan Assn., 132 So. 2d 341 (Fla.3d DCA 1961); 3 Fla.Jur.2d Appellate Review § 405 (1978).
Case nos. 82-1413 and 82-1444 are appeals by Ms. Rosen from an order in which the trial court, upon its denial of the motion to hold her husband in contempt, and without any request or previous indication of an intention to do so, summarily awarded him attorney’s fees for defending the application. As Rosen’s counsel candidly and commendably conceded at oral argument, this order was incorrectly entered and is therefore reversed. Bob v. Bob, 312 So. 2d 798 (Fla.3d DCA 1975) (attorney’s fee not awardable in matrimonial proceeding in absence of proper prayer or other previous notice); see Autorico, Inc. v. Government Employees Ins. Co., 398 So. 2d 485, 486 (Fla. 3d DCA 1981) (proper motion, notice, and judicial determination of frivolousness necessary for fee award under § 57.105); Steinhardt v. Eastern Shores White House Association, Inc., 413 So. 2d 785 (Fla. 3d DCA 1982) (§ 57.105 fees not awardable against party which has not been successful in entire case).
Affirmed in part, reversed in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)…cused. . See Rosen v. Rosen, 576 So. 2d 308 (Fla. 3d DCA 1990)(Rosen V); Rosen v. Rosen, 528 So. 2d 42 (Fla. 3d DCA)(Rosen IV), review denied, 537 So. 2d 569 (Fla.1988); Rosen v. Rosen, 478 So. 2d 459 (Fla. 3d DCA 1985)(Rosen III)-, Rosen v. Rosen, 426 So. 2d 1052 (Fla. 3d DCA 1983)(Rosen II); Rosen v. Rosen, 386 So. 2d 1268 (Fla. 3d DCA 1980){Rosen I), review denied, 392 So. 2d 1378 (Fla.1981). . Notably, a significant number of the cases awarding fees in family law cases were issued before our decision in…
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Rosen v. Rosen, 528 So. 2d 42 (Fla. 3d DCA 1988)…PER CURIAM. We reverse a judgment that modified a permanent periodic alimony award previously affirmed by this court, Rosen v. Rosen, 426 So. 2d 1052 (Fla. 3d DCA 1983), because the bases for modification, excluding a $100,000 gift made to Eileen Rosen by her father, do not reflect any significant change in circumstance from the time of entry of the original award. Bashaw v. Bashaw, 412 So. 2d 43…
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Rosen v. Rosen, 659 So. 2d 368 (Fla. 3d DCA 1995)…ildren and was dissolved in 1979, the parties hereto have engaged in continuous litigation. Rosen v. Rosen, 576 So. 2d 308 (Fla. 3d DCA 1990); Rosen v. Rosen, 528 So. 2d 42 (Fla. 3d DCA 1988); reh’g denied, 537 So. 2d 569 (Fla.1988); Rosen v. Rosen, 426 So. 2d 1052 (Fla. 3d DCA 1983); Rosen v. Rosen, 386 So. 2d 1268 (Fla. 3d DCA 1980) reh’g denied, 392 So. 2d 1378 (Fla.1981).1 Following these opinions, the former wife, on May 6, 1991, filed a petition to enforce this court’s mandate on the opinion and decision…
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Rosen v. Rosen, 386 So. 2d 1268 (Fla. 3d DCA 1980)
- Peadon v. State, 398 So. 2d 485 (Fla. 1st DCA 1981)
- Steinhardt v. E. Shores White House Ass'n, Inc., 413 So. 2d 785 (Fla. 3d DCA 1982)
- Kovens v. Bluestone, 132 So. 2d 341 (Fla. 3d DCA 1961)
- George J. Sullivan C.T.A. of the Estate of Mary E. Sutton Sullivan v. Chase Fed. Sav. & Loan Ass'n, 132 So. 2d 341 (Fla. 3d DCA 1961)
- Beach Resort Hotel Corp. v. Wieder, 83 So. 2d 863 (Fla. 1955)
- BOB v. Juliet BOB, 312 So. 2d 798 (Fla. 3d DCA 1975)